The COVID-19 pandemic has upended the U.S. workforce, leading to record levels of unemployment. While some people will return to work in the coming months, many workers with disabilities may remain out of the workforce indefinitely. Older workers with disabilities were thirty percent more likely to lose their jobs during the Great Recession than the population as a whole.[i] Many displaced workers with longstanding disabilities turned to Social Security disability benefits as they became unable to find accommodated work.[ii]
The Social Security Administration (SSA) is taking laudable steps to make disability benefits accessible by suspending some benefits reductions or terminations during the pandemic. Yet SSA is also reportedly moving “full steam ahead” with regulations to limit benefits to hundreds of thousands of people in need.[iii]
Congress should act quickly to prevent SSA from implementing the following regulations in this moment of crisis:
- Final Regulations Limiting Access to Disability Benefits for People who Are Limited English Proficient. SSA rules take into account both the severity of adults’ disabilities and how the disabilities affect ability to work. Consistent with its statutory obligations to consider education and literacy, SSA considers ability to speak English, recognizing that people who are limited English proficient may have a harder time finding work. A final rule issued in February 2020 would no longer allow SSA to consider language ability.[iv] The regulation is scheduled to take effect on April 27, 2020.
- Proposed Regulations to Require People to Provide Proof of Disability Every Two Years. People who qualify for disability benefits are subject to continuing disability reviews (CDRs) to maintain eligibility. CDRs are stressful and burdensome, and many eligible people struggle to complete them, putting their benefits at risk. Most people are reviewed every three to seven years. In November 2019, SSA proposed to review most people every two years, conducting 2.6 million more reviews over ten years, with particular impact on children and older adults.[v] SSA says that it would save $2.6 billion in benefits payments, but the savings would be offset by $1.8 billion in administrative costs. SSA received 130,000 comments on the proposed rule, most in opposition. It may issue a final rule in the coming months.
- Proposed Regulations Revising Disability Criteria for Musculoskeletal Conditions. In May 2018, SSA proposed sweeping changes to the disability criteria for musculoskeletal conditions, which range from chronic, severe back pain to bone and spine disorders.[vi] The changes would limit SSA’s ability to consider difficulties ambulating and the effects of obesity on underlying conditions, and would disadvantage people who do not manage their pain with opioids. SSA may issue a final rule at any time.
- Anticipated Regulations to Make It Harder for Older Adults to Qualify for Disability Benefits. In January 2020, The Wall Street Journal reported that SSA planned to alter the disability criteria for people aged 55 and older with physical health conditions like arthritis in the back and knees, injuries from a serious automobile accident requiring the use of a cane, or chronic back pain from herniated discs.[vii] SSA is considering other changes to its work rules, such as finding people who are able to work thirty hours per week ineligible for benefits, instead of the current forty-hour threshold. The Wall Street Journal noted that roughly 500,000 people would be affected by these changes. A proposed rule is expected in June 2020.
[i] Onur Altindag et al., Mich. Ret. Research Ctr., The Great Recession, Older Workers with Disabilities, and Implications for Retirement Security (2012), available at https://deepblue.lib.umich.edu/bitstream/handle/2027.42/95904/wp277.pdf.
[ii] Nicole Maestas et al., Disability Insurance and the Great Recession, 105 Am. Econ. Rev. 177-82 (2015), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4545664/.
[iii] Arthur Delaney, What Pandemic? Trump Administration Presses Forward With Long-Term Benefit Cuts, HuffPost (March 24, 2020, 11:04 am), https://www.huffpost.com/entry/trump-benefit-cuts-food_n_5e79f8e5c5b63c3b64973fd5.
[iv] 85 Fed. Reg. 10,586 (Feb. 25, 2020).
[v] 84 Fed. Reg. 63,588 (Nov. 18, 2019).
[vi] 83 Fed. Reg. 20,646 (May 7, 2018).
[vii] Kate Davidson, Trump Administration Weighs Tighter Requirements for Disability Payments, Wall St. J. (January 10, 2020, 5:00 pm), https://www.wsj.com/articles/trump-administration-weighs-tighter-requirements-for-disability-payments-11578686424.